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Kerala High Court · body

1951 DIGILAW 46 (KER)

Lekshmi Amma v. Kunju Kunjamma

1951-06-08

GANGADHARA MENON, SANKARAN

body1951
Judgment :- 1. Additional plaintiffs 7 to 11 have preferred this appeal against the lower court's order dismissing the execution petition filed by them on 12.3.1123 as being barred by limitation. Originally there were two plaintiffs in the case who were the owners of the equity of redemption of the suit properties. By a partition arrangement in their family this right is stated to have devolved on the 2nd plaintiff alone. The decree in the case is for redemption of the properties from the defendants who are in possession of the same as mortgagees. The final decree was passed on 11.6.1103. The present appellants had instituted a suit O.S. No. 10/1102 in the Quilon District Court against the 2nd plaintiff in the present suit and had obtained a decree against him. In execution of that decree they attached his rights under the present decree and sold the same in court auction and themselves purchased such rights on 27.2.1121 with his legal representatives on record. Under Ext. C dated 7.1.1123 these appellants obtained formal delivery also of such rights. It is on the strength of such purchase and delivery that they have now sought to execute the decree as additional plaintiffs 7 to 11. The defendants in the case raised the objection that the decree has become barred by limitation. In answer to this objection the additional plaintiffs 7 to 11 stated that before the decree became time barred, the 2nd plaintiff decree-holder had died in the year 1106 leaving additional plaintiffs 3 to 6 as his legal representatives and that since the additional 6th plaintiff continued to be a minor till 7.1.1121 the period of limitation for the execution of the decree was suspended till that date and as such the present execution petition filed on 12.3.1123 and which is the first execution petition, is within time. The lower court found that the additional 6th plaintiff was born on 7.1.1103 that there was a suspension of the period of limitation for the execution of the decree till the 6th plaintiff attained majority and that therefore the decree in the case has not become barred so far as additional plaintiffs 3 to 6 are concerned. The lower court found that the additional 6th plaintiff was born on 7.1.1103 that there was a suspension of the period of limitation for the execution of the decree till the 6th plaintiff attained majority and that therefore the decree in the case has not become barred so far as additional plaintiffs 3 to 6 are concerned. At the same time the lower court held that the benefit arising on account of the minority of the 6th plaintiff could be availed of by plaintiffs 3 to 6 only and not by the additional plaintiffs 7 to 11 who have acquired the rights of plaintiffs 3 to 6 under the decree. The respondents have not objected to the lower court's finding that the decree has not become barred by limitation so far as plaintiffs 3 to 6 are concerned. But in the objection memorandum filed on behalf of the respondents, an objection is raised to the lower court's findings that the 6th plaintiff had attained majority only on 7.1.1121. 2. The objection raised to the finding on the question of the age of the 6th plaintiff may be disposed of at the outset. It is seen that there is very strong and convincing evidence in support of the lower court's finding that the 6th plaintiff was born on 7.1.1103 and that he attained majority only 7.1.1121. To Ext. F partition deed executed by the members of the tarward of plaintiffs 3 to 6, on 31.1.1101, the present 6th plaintiff is not a party and it shows that he was not born at that time. Ext. H is copy of the Admission Register of the School in which the 6th plaintiff had his primary education. In this document his date of birth is given as 7.1.1103. There is nothing to doubt the correctness of this statement. Ext.1 mortgage deed dated 9.11.1119 wherein the 6th plaintiff is described as a major cannot by itself destroy the significance of the evidence furnished by Exts. F and H. There are other documents Exts. D, E and C also, going to show that the 6th plaintiff was not born prior to the year 1103. In view of the documentary evidence thus adduced in the case, the contention of the defendants that the 6th plaintiff was born prior to the year 1103, cannot prevail. F and H. There are other documents Exts. D, E and C also, going to show that the 6th plaintiff was not born prior to the year 1103. In view of the documentary evidence thus adduced in the case, the contention of the defendants that the 6th plaintiff was born prior to the year 1103, cannot prevail. We would therefore confirm the finding of the lower court that the 6th plaintiff was born on 7.1.1103 and that he attained majority only on 7.1.1121. 3. Then there is the question of limitation which has been found by the lower court against plaintiffs 7 to 11. The position taken up by the appellants is that the question of limitation in this case is governed by S.8 of the Travancore Limitation Act corresponding to S.7 of the Indian Limitation Act. This section lays down that where one of several persons jointly entitled to make an application for the execution of a decree is under a disability and where about his concurrence the other decree-holders cannot give a complete and valid discharge, time will not run as against any of them until one of them becomes capable of giving such a discharge without the concurrence of the others or until the disability has ceased. In the present case the decree is one for redemption and plaintiffs 3 to 6 were joint decree-holders. The decree had to be executed and the mortgage redeemed as a whole. It follows therefore that without the concurrence of the 6th plaintiff the other plaintiffs could not give a valid discharge and that time for the execution of the decree could not run as against any of them during the continuance of the minority of the 6th plaintiff. To this extent the finding of the lower court also is in favour of the position taken up by plaintiffs 7 to 11. 4. The lower court has held that the benefit thus accruing to plaintiffs 3 to 6 under S.8 of the Travancore Limitation Act is a personal benefit which cannot be availed of by others who have acquired the rights of these plaintiffs under the decree. The wording of S.8 of the Limitation Act does not lend support to such a narrow and limited construction being put upon the section. Under S.6 of the Limitation Act a special right is conferred on persons under disability. The wording of S.8 of the Limitation Act does not lend support to such a narrow and limited construction being put upon the section. Under S.6 of the Limitation Act a special right is conferred on persons under disability. That section lays down that where a person entitled to institute a suit or make an application for the execution of a decree is at the time from which the period of limitation is to be reckoned, a minor, or insane or an idiot, he may institute the suit or make the application within the same period after the disability had ceased as would otherwise have been allowed. It is significant to note that the expression used is "he may institute the suit or make the application". This necessarily indicates that the right conferred by the section is a personal right to be availed of by the person under disability after such disability has ceased. The generally accepted view is that the right conferred by S.6 is a personal right in favour of the person under disability and it could be availed of only by such person after the cessation of the disability or in the case the disability continues up to the death of such person, then by his legal representatives. But so far as S.8 of the Limitation Act is concerned it cannot be said that the section confers any such exclusive personal right in favour of the person under disability. It is significant to note that the benefit conferred by this section is not only in favour of the person under disability, but is also in favour of the persons who are under no disability at all. The wording in this section is that "time will no run as against any of them until one of them becomes capable of giving a discharge without the concurrence of the others or until the disability has ceased." In this respect the wording of S.8 is entirely different from the wording of S.6. What is stated in S.6 is not that time will not run during the continuance of the disability; on the other hand, what is stated is that after the cessation of the disability the person concerned may institute the suit or make the application within the same time as would otherwise have been available to him. What is stated in S.6 is not that time will not run during the continuance of the disability; on the other hand, what is stated is that after the cessation of the disability the person concerned may institute the suit or make the application within the same time as would otherwise have been available to him. This would indicate that so far as the right to be enforced is concerned the period of limitation prescribed will run in the normal course, but that the person under disability is given a special personal right to enforce such as right within a similar period after the cesssation of such disability. But in S.8 it is expressly stated that time will not run even against person not under disability just as against the person under disability, during the continuance of such disability. This must necessarily mean that during the continuance of the disability the running of the period of limitation is suspended; in other words, the right is kept alive during that period. The section as it stands does not warrant the construction that the benefit accruing from the suspension of the period of limitation is a purely personal benefit available only to the original parties and not to others who acquire their rights. So long as the decree is kept alive by virtue of S.8, there is no reason to restrict the right to execute the decree, in favour of the original decree-holder alone. Such right must be equally available to their assignees or transferees also. The right which is alive and capable of enforcement by the decree-holders themselves cannot be said to be barred or extinguished immediately on transfer of the same to a third party. In the present case the period of limitation did not run against the decree for redemption during the period of the minority of the 6th plaintiff i.e. from 7.1.1103 to 7.1.1121. On 7.1.1121 his disability ceased and as such additional plaintiffs 3 to 6 could execute the decree within the period available from 7.1.1121. Under S.9 of the Travancore Limitation Act (corresponding to S.8 of the Indian Act) the extended period of limitation is limited to three years from the date of the cessation of the disability i.e. from 7.1.1121 in this case. It was on 21.2.1121 that the rights under this decree were purchased in court auction by additional plaintiffs 7 to 11. Under S.9 of the Travancore Limitation Act (corresponding to S.8 of the Indian Act) the extended period of limitation is limited to three years from the date of the cessation of the disability i.e. from 7.1.1121 in this case. It was on 21.2.1121 that the rights under this decree were purchased in court auction by additional plaintiffs 7 to 11. At the time of the purchase such rights were alive and capable of enforcement by additional plaintiffs 3 to 6 none of whom was under a disability then. Such rights cannot be said to have become non-existent or unenforceable merely on account of the court sale. On the other hand such rights as they existed on 21.2.1121 passed on to the auction-purchasers. It follows therefore that these auction-purchasers also could enforce such rights within such time as was available to the additional plaintiffs 3 to 6. The present execution petition filed on 12.3.1123 is within that time i.e. within three years from 7.1.1121, and as such there is no bar of limitation for the execution petition and we hold accordingly. 5. In the result this appeal is allowed with costs, and in reversal of the order of the lower court additional plaintiffs 7 to 11 are allowed to proceed with the execution petition dated 12.3.1123. Allowed.